The U.S. House of Representatives Committee on Education and the Workforce has approved the Workforce Democracy and Fairness Act (“Bill”), which is part of the House Republican jobs agenda aimed at removing regulatory hurdles to creation of jobs. The Bill is a legislative challenge to a recent NLRB Rule. That Rule provides for conducting union representation elections within 10 days of the filing of a representation petition with the NLRB— a move favored by unions to expedite elections and, unintentionally of course, to drastically limit an employer’s time to provide employees with a fuller understanding of the facts prior to a vote. In contrast to the NLRB Rule, the Bill would mandate a waiting period of at least 35 days before an election.
The Bill also addresses the NLRB’s recent decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). That decision adopted a new approach for determining an appropriate bargaining unit. Specialty Healthcare “opens the door” to smaller, more narrowly defined bargaining units that, being smaller, take fewer votes to become unionized. Under the Specialty Healthcare standard, an employer that argues that a proposed unit inappropriately excludes certain employees must prove that the excluded employees share “an overwhelming community of interests” with employees in the proposed unit. The proposed House legislation would reinstate the more than 50 year old NLRB standard for determining employee-voter inclusions and exclusions in the proposed bargaining unit. That traditional standard includes in the proposed voting unit all employees who share a sufficient—rather than “overwhelming”– community of interests.
In a related matter involving a different NLRB Rule, several national trade associations have filed federal lawsuits to prevent the NLRB from enforcing another Rule that would require employers to post a notice notifying employees of their rights under the National Labor Relations Act. The multiple judicial challenges– now consolidated in the District of Columbia in federal court—are before the court on motions for summary judgment to declare the Rule unlawful and block the Board from implementing and enforcing it.